Criminal Defence & Challenging Vague Laws

The article looks at some instances of major laws that have been considered vague and which have been challenged successfully. It also comments on the general legal principles concerning vague laws which may be useful for litigators practicing in the fields of criminal defence and administrative law in both common and civil law jurisdictions.

INTRODUCTION

Generally, where legislatures pass laws for the laws to be valid, they do need to meet certain essential standards including, 1) their having gone through the proper checks and balances before their passing and, 2) the requirement for them to be passed in the manner required by a higher law, e.g., the relevant country’s Constitution.

However, a vital element in any new law which is sometimes overlooked by legislatures in a hurry to plug perceived legislative gaps, is that the laws passed must make sense and should avoid being vague even only for the reason that vague laws are difficult to follow and enforce.

If a law is vague, it will be well-suited to being a catalyst for big trouble for all concerned including those designated to enforce and, in most cases may even negate the very reason for its passing.

THE UK'S DATA RETENTION AND INVESTIGATORY POWERS ACT 2014 (“DRIPA”)

DRIPA is a famous example of a UK law that did not pass the vagueness test and as such was declared invalid by a court.

In 2015, in what was considered the first judgment of its kind, the case of R v Secretary of State for the Home Department [2015] EWHC 2092 (Admin), saw the UK High Court deciding that the terms and descriptions of powers in DRIPA were so vague that they were incompatible with the country’s obligations under human rights law in particular the European Union Charter of Fundamental Rights (“ECFR”) which at the time had bound the UK.

Whilst existing rights to judicial review make it possible for government powers and decisions made under them by parties empowered by statute to be redressed, this decision was the first of its kind to effectively cancel an Act of Parliament.

DRIPA’s challenge was in the form of a judicial review application by Members of Parliament and lawyers. They had requested the High Court to review the Act’s provisions (in particular regard to Section 1 of the Act which provided for considerable powers of data retention by state agencies) due to their concerns that the powers compromised the confidentiality of communications with solicitors and their clients as well as Members of Parliament and their constituents among other similar reasons.

In making their ruling, the judges were critical of DRIPA's lack of clarity in regard to the terms and conditions under which communications data can be intercepted by the law enforcement and state security agencies. This concern had led the judges to decide that that Act was “incompatible with the British public’s right to respect for private life and communications and to protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights”.

In particular, the court held that although there were applicable derogations provided by the ECFR, they applied only when strictly necessary and the UK legislature by adopting the data retention principles set out in EU Directive 2006/24 within DRIPA which had been found by the CJEU in the landmark Digital Rights case to be non-compliant in relation to Articles 7, 8 and 52(1) of the CFR, it had gone over its limits.

DRIPA was controversial in that it was one in a grouping of laws giving extensive surveillance to UK government agencies against the justification of anti-terrorism measures and national security responsibilities which were deemed to take precedence over human rights (e.g., right to privacy) considerations.

It is to be noted that since Brexit in 2020, the ECFR is no longer enforceable in the UK and that Section 5 (4) the UK’s European Union (Withdrawal) Act 2018 is specific on this point.

However, the ratio decidendi (or binding principle) of the decision of the case remains valid in that where a law is essentially vague, it can be reviewed by a court which can make it unenforceable.

TRINIDAD & TOBAGO’S SEDITION ACT OF 1920

In 2019/21 in Trinidad and Tobago, the sedition case upon the late Sat Maharaj, Secretary-General of the Sanatan Dharma Maha Saba provided another opportunity to see how laws perceived to be vague have been challenged and ruled upon by courts.

In 2019, Sat Maharaj was alleged to have publicly accused Tobagonians of not working, racing goats and crabs and had even claimed Tobagonian men would chase 'white meat' and commit rape. He was subsequently investigated by the Trinidad & Tobago police and at that point sought judicial review proceedings for a declaration, among other things, that the 1920 Sedition Law of Trinidad & Tobago under which he was being investigated was not a valid law.

The Judge’s Ruling

Sat's case, Vijay Maharaj v Attorney General of Trinidad & Tobago (Claim No. CV2019-02271) evoked a landmark judgment in January 2020 from Justice Seepersad who held that the sections of the Act under which the Applicant was charged (Sections 3 and 4) were inconsistent with the Constitution of Trinidad and Tobago and were as such void and said (at paragraph 170):-

“...1. The Court declares that sections 3, 4 of the Sedition Act contravene the principle of legality and/or legal certainty, in that they are vague, uncertain and therefore illegal, null and void and they offend the rule of law.

2. The Court declares that sections 3 and 4 of the Sedition Act infringe the right of the individual to enjoy freedom of thought and expression, the right to join political parties and express political views and the right to freedom of the press which are all rights which are tenets of a sovereign democratic state and individually or collectively these provisions infringe the binding declaration recorded at Section 1 of the Constitution.

3. The Court declares that sections 3 and 4 of the Sedition Act are inconsistent and/or incompatible with the characteristics, features and tenets of a democratic state and pursuant to Section 2 of the Constitution they are void to the extent of their inconsistency with the Constitution…”.

However, in March 2021 in The Attorney General of Trinidad & Tobago & Vijay Maharaj (Civ. App. No. P023 of 2020; Claim No. CV2019-02271), the Court of Appeal suspended/ overturned the judge’s decision saying that the parts of the Sedition Act the judge had ruled to be too vague and uncertain to be considered valid law, had in fact met the objectives of a valid law and were not vague and subjective as claimed by the Appellant.

But it seems the matter is not over as the lawyer who led the Appellant’s team, Senior Counsel Ramesh Lawrence Maharaj, has stated that the Appellant intends to appeal to the Privy Council in England which is Trinidad’s highest appellate court.

THE AMERICAN EXPERIENCE WITH VAGUE LAWS

The American experience with overturning vague laws is just as interesting.

In Connally v. General Construction Co. (1926) the US Supreme Court held that a law is vague and thus unconstitutional when people “of common intelligence must necessarily guess at its meaning.”

As such, according to the Supreme Court, whether the law seeks to regulates free speech, or do otherwise, its undue vagueness will negative guarantee of due process in the US constitution as may be extended to the federal government by the constitution's Fifth Amendment and to state governments under its Fourteenth Amendment.

Also, in Kolender v. Lawson (1983) the Supreme Court considered a law in California that that imposed a burden on persons who wander or loiter on the streets to provide “credible and reliable” identification.

The Court held the offending law to be unconstitutional as it was prima facie vague within the meaning of the due process clause of the Fourteenth Amendment as it failed to make clear what the "credible and reliable" identification requirement was and accordingly gave the police unlawful complete discretion to work out whether the suspect has complied with the law or not.

VOID FOR VAGUENESS NOT NEW DOCTRINE

Sir Edward Coke's writings have had a profound influence on the development of English law. His view was that if people perceived the law as uncertain or oppressive they would lose confidence in its workings and as such, uncertain, or vague laws should be avoided. Furthermore, in the 1700s, another influential jurist, Sir William Blackstone in his "Of the Nature of Laws" held that every law must clearly define the rights to be observed, and the wrongs to be eschewed.

DISCLAIMER

This article is not legal advice and must not be considered to be so. Before relying on its contents, you should take due independent legal advice from a specialist in your issue.

ABOUT THE AUTHOR: Dr Andre Alexander
Dr Andre Alexander is an English common law barrister and solicitor practicing internationally. He is the managing partner of ABS&P International Law Firm.

Copyright ABS&P International Law Firm

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.